Opinion for the Court filed by Circuit Judge MICHEL. Dissenting opinion filed by Chief Judge MAYER.
MICHEL, Circuit Judge.
James A. White, Jr. petitions for review of a final decision by the Merit Systems Protection Board ("Board") sustaining the action by the Department of Justice removing him from his position as a GS-07 Correctional Officer at the Federal Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia. White v. Dep't of Justice, No. DC-0752-01-0556-I-1, 2002 WL 1018567 (M.S.P.B. May 13, 2002). Because we conclude that White must be deemed to have been convicted of "a misdemeanor crime of domestic violence" under 18 U.S.C. § 921(a)(33) and that Warden Joseph M. Brooks ("the Warden"), the deciding official, therefore correctly concluded that White was prevented by 18 U.S.C. § 922(g)(9) from meeting the requirement of his position description that he be legally eligible, annually re-certified and authorized to carry a firearm, the Board's decision is in accordance with law. As the Board's decision also is supported by substantial evidence, we affirm.
On November 16, 2000, White pled guilty to a February 2000, misdemeanor
The Board upheld the agency's decision because of clear evidence of White's job requirement to carry a firearm, of his spouse-like relationship with Ms. Miles, and of his misdemeanor assault conviction. According to the Board, the petitioner's position description showed that he would, on occasion, "be authorized to carry firearms and to use physical force, including deadly force, to maintain control of inmates." Id. at 3. In addition, he was required annually to be re-certified for firearms proficiency. From this, the Board concluded that the legal disability to meet this job requirement created a sufficient nexus between the efficiency of the service and the agency's action for the Board to sustain the removal under 5 U.S.C. § 7513. Id. at 12. The Board also concluded that the agency's choice of removal as the penalty was reasonable under § 7513, based on all of the evidence, including a review of the deciding official's decision letter and hearing testimony, both to the effect that White's inability to meet this condition of continued employment left no alternative but removal. Id. at 13. The foundations of the Board's holding were that 18 U.S.C. § 921(a)(33), which defines what constitutes "a misdemeanor crime of domestic violence," encompassed White's conviction and that neither § 921 nor § 922 was unconstitutionally vague. Id. at 7.
This appeal requires two different inquiries. First, as a threshold matter, we must analyze and construe the operative term of § 922(g)(9), "of domestic violence," which is defined in § 921(a)(33), to determine whether § 922(g)(9) applied to and, therefore, constrained White. This threshold inquiry actually has two subparts: (A) construing the meaning of the statutory definition; and (B) determining factually its applicability to White. Beyond this threshold matter, the second inquiry, and the real heart of this case, is whether or not the Board's decision affirming the Warden's removal of White was otherwise proper. Although affected by the results of our first inquiry, this second inquiry requires separate analysis under personnel
We first address whether White's conviction for simple assault rather than domestic violence meets the definition in § 921(a)(33) of "a misdemeanor crime of domestic violence" as that term is used in § 922 (emphasis added), given the ample, separate proof that the victim of White's assault was his long-time paramour. If so, then he is constrained by § 922. White, however, argues that he is not so constrained in view of his "acquittal" on the charge of misdemeanor domestic violence (Virginia Code Section 18.2-57.2) and guilty plea only to the reduced charge of misdemeanor simple assault (Virginia Code Section 18.2-57). We conclude that he is mistaken. Reviewing the grammar of § 921(a)(33)(A)(ii) and reading the statute in light of clear and explicit legislative history compel us to conclude, as have other circuits, that the statute includes convictions for crimes that do not incorporate a domestic relationship as an element, so long as the agency's proof establishes a domestic relationship as described in § 921(a)(33)(A)(ii), because in light of the legislative history the only statutorily-required element is violence or the threat thereof.
Section 922(g)(9) prohibits certain convicts from receipt or possession of a firearm, providing:
18 U.S.C. § 922(g)(9) (2000) (emphases added). A "misdemeanor crime of domestic violence" is defined in 18 U.S.C. § 921(a)(33) as:
18 U.S.C. § 921(a)(33) (2000) (emphases added).
Whether § 921(a)(33)(A)(ii) requires that a domestic relationship be an element of the crime is not a question of first impression nationally, but it is for our court. The government has brought to our attention a significant and consistent body of case law in other circuits addressing that very issue. For example, in United States v. Barnes, 295 F.3d 1354, 1360-61 (D.C.Cir. 2002), the United States Court of Appeals for the District of Columbia Circuit set forth an exhaustive linguistic analysis of
Id. at 1360 (emphasis in original and footnotes omitted). The court then relied on the analysis that "[t]he fact that the Congress somewhat awkwardly included the `committed by' phrase in subpart (ii) (instead of adding a subpart (iii)) is not significant in view of the unnatural reading that would result if `committed by' were construed to modify `use of force.'" Id. at 1361. The court, thus, deemed itself compelled to conclude that "section 921(a)(33)(A)'s language plainly requires only one element, i.e., the use of force." Id. at 1362.
The Barnes court also considered, first, the purpose of the statute — concluding that the defendant's construction would "render the law a nullity in a majority of the states as well as at the Federal level" because their penal codes do not define any crimes having a domestic relationship as an element — and, second, the explanation of Senator Lautenberg in offering the amendment that became this provision. Id. at 1364. Senator Lautenberg explained the "as an element language" was directed to the force component of § 921(a)(33)(A)(ii) in order to replace the language "crime of violence," which was seen as too vague:
142 Cong. Rec. 26675 (1996). Senator Lautenberg also directly addressed the applicability of § 922 to crimes not having a domestic relationship as an element in saying:
Id. (emphasis added). Senator Lautenberg's statements are relevant because he was the author of the disputed language in his amendment to the bill. See id. at 26674. His statements are entitled to probative weight as to the meaning of the terms he employed in the amendment, as statements by a non-authoring congressperson would not be.
We can see no error in the Barnes analysis of either the plain meaning of the statute or the intent of Congress in enacting the statute. Nor has White identified any. Indeed, although Barnes was heavily relied upon in the government's response brief, White's reply brief failed to distinguish or even cite it. Although only persuasive, not binding, authority to us, we find the reasoning of Barnes convincing. Moreover, while Barnes is a criminal case, not a personnel case as ours is, we nevertheless find it applicable here. Therefore, we adopt the reasoning of Barnes, as we
Moreover, arriving at the same conclusion, and equally persuasive are four other circuits' decisions: United States v. Kavoukian, 315 F.3d 139, 144-45 (2d Cir. 2002) (reversing the dismissal of an indictment under § 922(g)(9) on the basis that a state conviction for Menacing in the Second Degree does constitute a predicate under the statute and because this understanding comes from the plain language of the statute, the rule of lenity is inapplicable); United States v. Chavez, 204 F.3d 1305, 1313-14 (11th Cir.2000) (concluding that conviction under a federal general assault statute for U.S. territories can be a "misdemeanor crime of domestic violence"); United States v. Meade, 175 F.3d 215, 218-19 (1st Cir.1999) (holding that the defendant's state misdemeanor conviction under a general assault and battery statute, for assaulting his spouse is a "misdemeanor crime of domestic violence"); United States v. Smith, 171 F.3d 617, 620 (8th Cir.1999) (holding that "while § 921(a)(33) requires proof of a domestic relationship, it only requires the predicate misdemeanor to have one element: the use or attempted use of physical force" and therefore that conviction under an Iowa misdemeanor simple assault statute for the defendant's assault of the mother of his child constituted a "misdemeanor crime of domestic violence"). Indeed, no circuit has held to the contrary.
Petitioner offers us no reason why the consistent interpretation of these five other circuits is incorrect. In fact, petitioner mentions only one of these cases, United States v. Smith, 964 F.Supp. 286 (N.D.Iowa 1997), and then only generally, and only the district court opinion. He contends that the district court's construction of the statute (which is consistent with the circuit court opinions) is incorrect because "[s]uch a reading impermissibly expands the reach of the penal code, fails to strictly construe the statute against the government and produces an absurd result removing the domestic element only to throw it back in with an explanation resembling a slight of hand." This argument lacks the specificity necessary to even hint at possible error in any of the other circuits' analyses, much less persuade us to diverge from their well-supported conclusions. In our view, the other circuits did strictly construe the statute — so there is no expansion — and the analyses actually show that it is White's result, not the other circuits', that would be "absurd" because the statute would be ineffectual in the majority of states and in federal enclaves. See, e.g., Barnes, 295 F.3d at 1364 n. 12, 1364-65. The petitioner's extensive arguments for why this statute, like all criminal laws, must be strictly construed — as opposed to explaining how these other courts (and the Board here) erred in arriving at their strict constructions — are, thus, not helpful.
We too hold that § 921(a)(33) requires only that the use or attempted use of physical force (or the threatened use of a deadly weapon) be an element of the predicate misdemeanor offense, and the existence of a domestic relationship need not be an element.
The next question then is whether the criminal statute as construed applies to White in his capacity as a federal employee. White appears to argue that on its face § 921 is unconstitutionally vague (and therefore void) because, he urges, it fails to put a person of ordinary intelligence on notice regarding what behavior is proscribed. He also specifically argues that, as applied to him, the Board's interpretation of the statutes is unconstitutionally vague and violates White's right to due process because the phrasing of § 921 "does not give a person of ordinary intelligence a reasonable opportunity to know that although he was acquitted of the misdemeanor crime of domestic violence he is deemed to have been convicted of that very crime."
Other circuits have also already addressed such arguments, and, again, more than satisfactorily. An alternate possible interpretation of the statutory text "does not by itself establish vagueness"; rather, the test is "whether it `either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.'" Barnes, 295 F.3d at 1366 (quoting United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)). We see no such problem with this statute. Rather, we agree with the Barnes and Smith courts that "we would be hard pressed to find an individual of common, or even not so common, intelligence who could not determine whether he was in one of the enumerated relationships when he committed a misdemeanor crime including an element of physical force," and that the statute is, therefore, not void for vagueness. Barnes, 295 F.3d at 1366 (quoting Smith, 171 F.3d at 623). We conclude that § 921(a)(33) is sufficiently clear to require us to reject White's facial vagueness attack.
Also, contrary to White's argument about the statute as applied to him, no one at any stage of these personnel proceedings has relied on any other conviction or "deemed [him] to have been convicted" of the original misdemeanor that was amended by the prosecutor from domestic assault to simple assault. The only conviction the Board relied upon to conclude that White is prohibited from possessing or receiving a firearm is the one for simple assault. This is entirely appropriate. As Smith explains, the existence in the state penal code of an alternate misdemeanor that specifically incorporates a domestic relationship element does not make § 921 vague because "[t]he fact that [the defendant] could have been convicted under two
The petitioner's additional arguments of how the Board erred in concluding that § 922 applied to him are equally unconvincing. For example, the petitioner highlights a post-conviction Virginia state court finding in a domestic relations case about his relationship with Ms. Miles. The petitioner, however, poorly represents the nature of the court's finding (by truncating the quotation) and also misinterprets its significance. The Circuit Court of the City of Richmond found that "Mr. White is not a person with a relationship to Ms. Miles to confer authority over this court to award a protective order to present [sic] family abuse."
White also argues that the Board's finding that White "cohabitated with the victim as a spouse" or was "a person similarly situated to a spouse" was unsupported by substantial evidence. This argument is almost frivolous because the factual finding about White's relationship with Ms. Miles is overwhelmingly supported. The Board cited Ms. Miles' uncontradicted testimony that she lived with White continuously from August 1998 to June 1999 in the only residence either maintained, and thereafter maintained an intermittent relationship with him until the February 2000 incident, including a period from November 1999 to February 2000 in which White stayed "up to 5 days/nights a week with her," although maintaining a separate residence. Initial Decision, slip op. at 7-9. This suggests continuous, complete cohabitation for at least ten months, and substantial cohabitation for close to a year and a half prior to the assault. The Board also referred to numerous details of Miles' testimony that tended to show that the nature of the relationship was "as a spouse," or at least similar to a spousal relationship, including expectations of fidelity and monogamy, shared expenses, shared household responsibilities, social activities in common, and
Having concluded that § 922 does constrain White, we now turn to the correctness of the Board's conclusion that the Warden's decision to remove White was lawful. In order to sustain a removal based on the interaction of a prior simple assault conviction with § 922 of the federal penal code for any employee who is required at work to carry a firearm, an agency, if challenged before the Board, must simply prove the domestic nature (here, spouse-like) of the employee's relationship with the victim as of the time of the assault, or anytime before the assault. We hold that the Board correctly sustained the Warden's decision that White's legal disability to lawfully possess a firearm constituted a "Loss of Qualifications" and warranted removal. The Board's decision was correct both because it was supported by substantial evidence and because it was "in accordance with law." See 5 U.S.C. § 7703(c) (2000). Specifically, all of the circumstances of White's conviction and relationship with Ms. Miles constitute substantial evidence supporting the Board's decision to sustain the removal. The Warden was not obligated to wait for White actually to commit or be investigated or arrested for a violation of § 922 to conclude that he was not permitted by law to carry a firearm. In fact, it was incumbent on the Warden to remove any person who is unable to perform the full range of required duties because he or she is prohibited under § 922(g) from possessing a firearm, as here.
The petitioner argues that the Board's decision was not in accordance with law because he cannot be found guilty of a "misdemeanor crime of domestic violence" (as defined in § 921(a)(33)) because he was "acquitted" of the Virginia state charge of misdemeanor domestic violence.
White also argues that the Board's decision was not in accordance with law based on the assertion that he was retried in a proceeding without the benefit of a jury or an attorney as required by § 921(a)(33)(B)(i).
White makes an additional challenge to the Board's decision, arguing that § 922 is void on its face as unconstitutionally vague because it does not give him sufficient notice. This challenge, however, is particularly inapt in the context of our review of the Board's action because White was not charged with violating § 922 before the Board. Rather, it is a removal action taken by the Warden that the Board reviewed and sustained. White's notice as to that action was more than complete. Indeed, White makes no challenge to the notice of proposed removal or the decision letter. With respect to the crime that is the predicate of the removal, misdemeanor simple assault, petitioner cannot have been unclear that assault upon any person, much less one with whom he had a close, personal relationship, was behavior proscribed by penal statute and that conviction thereof would have serious repercussions. If he is arguing that he was unaware that conviction for such behavior disqualifies him to carry a firearm, then his argument is irrelevant. First, everyone is presumed to know the
Finally, even if there were inadequate notice in his job description over the requirement that he must be legally and technically qualified to carry a firearm (see discussion of the sufficiency of the evidence demonstrating the requirements of White's position suggesting no such inadequacy, post), it would not render the controlling criminal statute in any way unconstitutional. Nor need a job description contain constitutionally sufficient notice for criminal purposes because a job description, unlike a criminal statute, cannot form the foundation for punishment, only removal.
Finally, regarding White's various arguments asserting insubstantiality of the evidence supporting the Board's decision to sustain his removal for failure to remain qualified for his job, we are also unconvinced. White contends, for example, that there was no evidence that he was "unable to possess a firearm" or that he had a "loss of qualifications" because § 922 only prohibits receiving firearms "shipped or transported in interstate or foreign commerce," or possession "in or affecting commerce." As the government explains, White cannot challenge upon appeal what he failed to challenge before the Board. See, e.g., Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed.Cir.1998). The Board noted that White "did not challenge the presumption that he would, in the course of his duties as a correctional officer, likely be required to possess a firearm and ammunition that had, at some point in time, traveled in interstate commerce." Initial Decision, slip op. at 7. Therefore, in the face of White's failure to make such arguments earlier, we will not consider any error in the Board's decision based on this argument, for it is deemed waived.
White's argument that the Board inappropriately shifts the agency's burden to prove the charges against an employee does not suggest that we should alter this holding either. Although the Board's use of the word "presumption" is inaccurate, it is at most harmless error. The agency did present evidence (and the Board considered the evidence) about the requirements of White's position: namely, the copy of White's position description, including a
Id. (citations omitted).
Moreover, if White's argument is centered not on deficiencies in the proof about his job requirements, but rather concerns the interstate commerce requirement of the statute, then the argument is simply on its face unconvincing. If White is suggesting that the Warden provide White a firearm and ammunition that never traveled in interstate commerce, such an argument must be rejected as wholly impractical. Not only would it be virtually impossible to find firearms or ammunition that did not have the very minimal contacts with interstate commerce required by § 922(g)(9), but also, in requiring correctional officers to be qualified to carry a gun, the Department of Justice must have also assumed that these correctional officers would be able to use and possess any gun or any ammunition because, as a practical matter, those who are expected to use firearms in emergency situations cannot be under the obligation to first ascertain the provenance of the firearms or ammunition given to them and to then decline to use all but a few.
We have considered all of White's other arguments and find them similarly unpersuasive.
For the foregoing reasons — and particularly because the agency provided to the Board ample and uncontradicted proof of a domestic relationship of a spousal nature as described by § 921(a)(33)(A)(ii) — we affirm the Board's decision upholding the Department of Justice's removal of White.
MAYER, Chief Judge, dissenting.
Because, contrary to the court, 18 U.S.C. § 921(33)(A)(ii) (2000) requires violation of a domestic violence statute as a predicate element, I dissent. Section 922(g) makes it unlawful for any person who has been convicted of a misdemeanor crime of domestic violence to possess a firearm. A misdemeanor crime of domestic violence is defined in Section 921(33)(A)(ii) as a misdemeanor under federal or state law which "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a
Statutory construction begins with the plain language of the statute. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). The plain language here clearly and unambiguously requires that the misdemeanor "[have], as an element," a domestic component. The court should look beyond the plain meaning of the statute only if the language is ambiguous or if a literal interpretation would frustrate the purpose behind the statute. Bob Jones Univ. v. United States, 461 U.S. 574, 586, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983). Neither is the case here.
Nevertheless, the purpose of the statute is consistent with a literal reading. The purpose is to prevent people convicted of crimes of domestic violence from possessing a firearm. 142 Cong. Rec. D927-02, *D928 (1996). Had White been convicted under Virginia's domestic violence statute, he would have been prevented from possessing a firearm. The court relies on United States v. Barnes, 295 F.3d 1354 (D.C.Cir.2002), for the proposition that to adopt the literal construction would render the law a nullity in a majority of states. That may be a reason for Congress to rewrite the law, but no such argument was presented to us. It is also irrelevant because Virginia has a domestic violence statute.
The court looks to congressional intent and concludes that the statute should not be given its literal meaning. But if Congress had intended for administrative officials to probe the facts of an underlying misdemeanor to determine the domestic relationship of the victim, it could easily have said so. Simply replacing "has as an element" with "the underlying facts show," or similar language, would have been sufficient.
In the case before us, White was charged with both misdemeanor assault and misdemeanor domestic violence and acquitted of the domestic violence charge. So the charge which had domestic violence as an element was dismissed. In the face of the long standing injunction to construe penal statutes narrowly, Mourning v. Family Publ'n Serv., Inc., 411 U.S. 356, 375, 93 S.Ct. 1652, 36 L.Ed.2d (1973), it is perverse to base a dismissal from the service on the very charge not proved before a judge and jury, but resurrected by an administrative judge.
A person shall not be considered to have been convicted of such an offense for purposes of this chapter [18 U.S.C. §§ 921 et seq.], unless —